17: Federalism, community identity and distributive justice

Among the challenges facing multi-level legal orders in today’s globalized world, the conciliation of various communal identities comprised in broader political communities and the implementation of solidarity in such communities are possibly the most salient.

Sometimes, these broader political communities take the form of full-fledged federations, but other forms of hybrid communities are also increasingly common.

How can constitutional law contribute to managing unity and diversity in light of institutional differences arising out of various forms of multi-level legal orders?

How to make sense of the notion of autonomy in such contexts?

How to conceive of sovereignty?

How do these new forms of political identity impact on traditional conceptions of justice?

How can existing theories cope with the justice claims resulting from the forms of interdependence generated in the new political communities?

How to manage the nationalisms that are resurgent as a result of a disenchantment towards some broken promises of multi-level legal orders and their incapacity to answer some of these claims for justice?

The difficulty of answering these questions is arguably increased in contexts of strained governmental finances or of imbalances between the resources of various members of multi-level legal orders. To wit, in many federations or so-called “regional states”, gaps in wealth between various parts of the country complicate intergovernmental relations, sometimes to the point of threatening national unity. In a hybrid organization such as the European Union, wealthier states are increasingly reluctant to support states with a weaker economic infrastructure.

These difficulties are accentuated because although policies are increasingly defined at the supra-national level in such polities, the politics that frame them remain deeply national in many such polities. Such national or local political spaces and often incapable of internalizing the consequences of the interdependence generated by the larger polity, often resulting in the wrong set of incentives being generated at the policy level. In addition, this lack of internalisation of the consequences of interdependence renders any attempts at developing criteria for solidarity and justice particularly difficult. In such cases, identity-based prejudices often overlap with economic rivalries.

How to make sense of the principle of justice in such contexts?

Is that principle consubstantial to federal or quasi-federal regimes?

Is it a mere political principle, or can it be given legal claws?

What are the various constitutional mechanisms by which solidarity can be implemented?

What is the judiciary’s role in facilitating such processes?

Can concerns for distributive justice arise absent a common political identity?

Or do justice claims become more pressing absent such common identity?

The various configurations flowing from the nexus between federalism, identities and distributive justice will be addressed in this workshop. Theoretical and comparative papers related to one or another aspect of this nexus are welcome.